The purpose of the Service member Civil Relief Act of 2003 (SCRA) is to prevent an unfair advantage over military litigants who would be caught blindsided if they were unaware of litigation or unable to retain counsel.
The SCRA provides protection against entry of default judgments and gives the court the ability to stay proceedings in Family Court.
Even when a servicemember has received notice of a case or hearing, the respondent may apply for a stay while on active duty or 90 days after it ends. The application must include (pursuant to 50 USC App §522(b)(2)) the following: 1) A letter describing how the servicemember’s military duties materially affect the ability to appear and providing a date when the servicemember can appear; and 2) a letter from the servicemember’s commanding officer confirming that military duty prevents an appearance and that there is not authorization for a military leave.
If a child support modification is being requested, if possible, the court must schedule the hearing before the deployment date; if that is not possible, the court must grant a stay . . as long as the servicemember has met the relevant requirements. If the court declines to grant a discretionary stay, the Court may not proceed until it appoints counsel for the service member unless the service member has an attorney. Therefore if the service member is represented, the child support case may go forward.
The California Judicial Counsel has made it easy to notify the court of active military status by creating a one-page form—FL-398 to notify the court of active military status.
Attorney Vera Livingstone has proudly represented many military families and is well-versed in all aspects of military divorce litigation including DFAS, Survivor Benefits, BAS, BAH, military housing, conduct, retirement, TSP, and much more. Livingstone Law offers a 10% discount for service members and their families.